RIVES, Circuit Judge.
This appeal is from a summary judgment in favor of Gulf Power Company, defendant below, and against Ernest W. and Margaret P. Shahid, plaintiffs below. The plaintiffs sought $500,000 damages from the defendant for its alleged negligence in the destruction by fire of the plaintiffs’ Shoreline Hotel on April 16, 1956. The questions presented are whether there was any genuine issue as to any material fact as to the defendant’s alleged negligence, and whether the defendant was entitled to judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A.
The salient facts were these: Plaintiffs’ hotel was situated facing Highway 98 and the Gulf of Mexico about fifteen miles east of Fort Walton Beach, Florida, and a little less than a mile west of a substation maintained by the defendant. At the substation the current which was conducted to plaintiffs’ premises from the east was reduced to about 12,-000 volts. Plaintiffs’ hotel was serviced by wires passing through a transformer situated just off of plaintiffs’ premises where the current was further reduced to 208 and 120 volts.
On the morning of the fire, between three and four o’clock, plaintiffs were awakened by loud shouting of a guest accompanied by continuous blowing of his automobile horn. Upon arising they found that the hotel was in total darkness, and upon looking across the road they saw that lights were burning in a nearby establishment, from which they knew that the trouble was upon their own premises. Dressing quickly, they went towards the point where the guest was giving the alarm and found sparks, which they took to be electrical sparks, being emitted from a ground floor storage room through a louvered door. In this room were, located the fuse boxes and circuit breakers connected with the hotel’s electrical system. The room above, from which some evidences of fire were observed, contained the main switch by which the electrical current into the hotel could be cut off. The electrical equipment on the hotel premises and belonging to plaintiffs led to a goose-necked mast on top of the hotel where defendant’s service wires were connected. Soon after plaintiffs arrived downstairs, bright flashing and arcing were observed at and nearby this mast and along defendant’s wires where they were connected with the wiring system of plaintiffs.
As soon as they had been able to size up the situation and before much evidence of actual fire had appeared, plaintiff Ernest Shahid, finding all telephones in the vicinity inoperative, drove to Silver Beach, about seven miles away, and called defendant’s emergency serviceman Ratliff in Fort Walton reporting the situation and asking that he come promptly and disconnect the electrical wiring. After Ernest Shahid had returned, his wife carried their children to Silver Beach and there by telephone reported the fire to several fire companies in nearby towns.
Ratliff, immediately upon being called by Shahid, telephoned his co-worker Bar-field and the two hastily dressed. Bar-field drove defendant’s service truck to Ratliff’s house and picked him up, and they proceeded to plaintiffs’ hotel. When they arrived, the arcing at and around the service mast had ceased and the wires to the hotel had been severed and were lying on the ground.
The issues framed by the pleadings and further evidence developed by depositions and affidavits are stated in the opinion of the district court granting the defendant’s motion for summary judgment, which opinion is reported in 23 F.R.D. at page 245.
Before rendering summary judgment the district court must determine both (1) “that there is no genuine issue as to any material fact” and (2) “that the moving party is entitled to a judgment as a matter of law.” Rule 56(e), Federal Rules of Civil Procedure. Requisite (2) [424]*424does not automatically follow from requisite (1).
In Palmer v. Chamberlin, 5 Cir., 1951, 191 F.2d 532, 540, 27 A.L.R.2d 416, we said:
“ * * * before rendering judgment the Court must be satisfied not only that there is no issue as to any material fact, but also that the moving party is entitled to a judgment as a matter of law. Where, as in this ease, the decision of a question of law by the Court depends upon an inquiry into the surrounding facts and circumstances, the Court should refuse to grant a motion for a summary judgment until the facts and circumstances have been sufficiently developed to enable the Court to be reasonably certain that it is making a correct determination of the question of law.”
In Demandre v. Liberty Mutual Insurance Company, 5 Cir., 1959, 264 F.2d 70, 72, we stated that:
“ * * * whether the ‘facts’ stated in the complaint present a ‘genuine issue as to any material fact’ as F.R.Civ.P. 56 requires is really to be measured by whether no evidence could be offered to support the plaintiff’s theory.”
In Alabama Great So. R. Co. v. Louisville & Nashville R. Co., 5 Cir., 1955, 224 F.2d 1, 5, 50 A.L.R.2d 1302, we recognized “that as a general proposition the issue of negligence, including the related issue of wanton conduct, is ordinarily not susceptible of summary adjudication.”
In Dyer v. MacDougall, 2 Cir., 1952, 201 F.2d 265, 269, Judge Learned Hand pointed out the necessity in some cases of an examination of a witness in open court, “that the immediate presence of a judge in a court-room was likely to make him tell more.”
In Subin v. Goldsmith, 2 Cir., 1955, 224 F.2d 753, 758, referred to approvingly by this Circuit in Alabama Great So. R. Co. v. Louisville & Nashville R. Co., supra, Judge Frank stated that:
“Particularly where, as here, the facts are peculiarly in the knowledge of defendants or their witnesses, should the plaintiff have the opportunity to impeach them at a trial; and their demeanor may be the most effective impeachment.”
As to whether the first requisite for summary judgment — “that there is no genuine issue as to any material fact” —has been met,
“ * * * the court should take that view of the evidence most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn from the evidence. If, when so viewed, reasonable men might reach different conclusions, the motion should be denied and the case tried on its merits.”
Ramsouer v. Midland Valley R. Co., 8 Cir., 1943, 135 F.2d 101, 106; see also, 6 Moore’s Federal Practice, 2nd ed., p. 2114.
The evidence showed that the defendant furnished the electric power to plaintiffs’ hotel. The district court found that:
“Admittedly, the fire was of electrical origin. The depositions of plaintiffs establish that the fire started on the ground floor of the hotel building in a room housing the electrical equipment of the plaintiffs.
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RIVES, Circuit Judge.
This appeal is from a summary judgment in favor of Gulf Power Company, defendant below, and against Ernest W. and Margaret P. Shahid, plaintiffs below. The plaintiffs sought $500,000 damages from the defendant for its alleged negligence in the destruction by fire of the plaintiffs’ Shoreline Hotel on April 16, 1956. The questions presented are whether there was any genuine issue as to any material fact as to the defendant’s alleged negligence, and whether the defendant was entitled to judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A.
The salient facts were these: Plaintiffs’ hotel was situated facing Highway 98 and the Gulf of Mexico about fifteen miles east of Fort Walton Beach, Florida, and a little less than a mile west of a substation maintained by the defendant. At the substation the current which was conducted to plaintiffs’ premises from the east was reduced to about 12,-000 volts. Plaintiffs’ hotel was serviced by wires passing through a transformer situated just off of plaintiffs’ premises where the current was further reduced to 208 and 120 volts.
On the morning of the fire, between three and four o’clock, plaintiffs were awakened by loud shouting of a guest accompanied by continuous blowing of his automobile horn. Upon arising they found that the hotel was in total darkness, and upon looking across the road they saw that lights were burning in a nearby establishment, from which they knew that the trouble was upon their own premises. Dressing quickly, they went towards the point where the guest was giving the alarm and found sparks, which they took to be electrical sparks, being emitted from a ground floor storage room through a louvered door. In this room were, located the fuse boxes and circuit breakers connected with the hotel’s electrical system. The room above, from which some evidences of fire were observed, contained the main switch by which the electrical current into the hotel could be cut off. The electrical equipment on the hotel premises and belonging to plaintiffs led to a goose-necked mast on top of the hotel where defendant’s service wires were connected. Soon after plaintiffs arrived downstairs, bright flashing and arcing were observed at and nearby this mast and along defendant’s wires where they were connected with the wiring system of plaintiffs.
As soon as they had been able to size up the situation and before much evidence of actual fire had appeared, plaintiff Ernest Shahid, finding all telephones in the vicinity inoperative, drove to Silver Beach, about seven miles away, and called defendant’s emergency serviceman Ratliff in Fort Walton reporting the situation and asking that he come promptly and disconnect the electrical wiring. After Ernest Shahid had returned, his wife carried their children to Silver Beach and there by telephone reported the fire to several fire companies in nearby towns.
Ratliff, immediately upon being called by Shahid, telephoned his co-worker Bar-field and the two hastily dressed. Bar-field drove defendant’s service truck to Ratliff’s house and picked him up, and they proceeded to plaintiffs’ hotel. When they arrived, the arcing at and around the service mast had ceased and the wires to the hotel had been severed and were lying on the ground.
The issues framed by the pleadings and further evidence developed by depositions and affidavits are stated in the opinion of the district court granting the defendant’s motion for summary judgment, which opinion is reported in 23 F.R.D. at page 245.
Before rendering summary judgment the district court must determine both (1) “that there is no genuine issue as to any material fact” and (2) “that the moving party is entitled to a judgment as a matter of law.” Rule 56(e), Federal Rules of Civil Procedure. Requisite (2) [424]*424does not automatically follow from requisite (1).
In Palmer v. Chamberlin, 5 Cir., 1951, 191 F.2d 532, 540, 27 A.L.R.2d 416, we said:
“ * * * before rendering judgment the Court must be satisfied not only that there is no issue as to any material fact, but also that the moving party is entitled to a judgment as a matter of law. Where, as in this ease, the decision of a question of law by the Court depends upon an inquiry into the surrounding facts and circumstances, the Court should refuse to grant a motion for a summary judgment until the facts and circumstances have been sufficiently developed to enable the Court to be reasonably certain that it is making a correct determination of the question of law.”
In Demandre v. Liberty Mutual Insurance Company, 5 Cir., 1959, 264 F.2d 70, 72, we stated that:
“ * * * whether the ‘facts’ stated in the complaint present a ‘genuine issue as to any material fact’ as F.R.Civ.P. 56 requires is really to be measured by whether no evidence could be offered to support the plaintiff’s theory.”
In Alabama Great So. R. Co. v. Louisville & Nashville R. Co., 5 Cir., 1955, 224 F.2d 1, 5, 50 A.L.R.2d 1302, we recognized “that as a general proposition the issue of negligence, including the related issue of wanton conduct, is ordinarily not susceptible of summary adjudication.”
In Dyer v. MacDougall, 2 Cir., 1952, 201 F.2d 265, 269, Judge Learned Hand pointed out the necessity in some cases of an examination of a witness in open court, “that the immediate presence of a judge in a court-room was likely to make him tell more.”
In Subin v. Goldsmith, 2 Cir., 1955, 224 F.2d 753, 758, referred to approvingly by this Circuit in Alabama Great So. R. Co. v. Louisville & Nashville R. Co., supra, Judge Frank stated that:
“Particularly where, as here, the facts are peculiarly in the knowledge of defendants or their witnesses, should the plaintiff have the opportunity to impeach them at a trial; and their demeanor may be the most effective impeachment.”
As to whether the first requisite for summary judgment — “that there is no genuine issue as to any material fact” —has been met,
“ * * * the court should take that view of the evidence most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn from the evidence. If, when so viewed, reasonable men might reach different conclusions, the motion should be denied and the case tried on its merits.”
Ramsouer v. Midland Valley R. Co., 8 Cir., 1943, 135 F.2d 101, 106; see also, 6 Moore’s Federal Practice, 2nd ed., p. 2114.
The evidence showed that the defendant furnished the electric power to plaintiffs’ hotel. The district court found that:
“Admittedly, the fire was of electrical origin. The depositions of plaintiffs establish that the fire started on the ground floor of the hotel building in a room housing the electrical equipment of the plaintiffs. Plaintiffs state that they saw arcing and sparking in this room, and later on the service lines running from the defendant’s transmitter pole to the service mast on top of the hotel, and that, therefore, there must be an inference at least that the fire might have started from some negligence on the part of the defendant.”
Shahid v. Gulf Power Company, N.D.Fla.1959, 23 F.R.D. 245, 246.
Mrs. Shahid testified that after all evidences of power over the main switch of the hotel were gone, “it was evident that we were still being fed current and yet [425]*425there were no lights on. Q. What was the evidence that you were still being fed current? A. Seeing the electrical arc through from their transformer into our building.” R. L. Pulley, defendant’s vice president and operating manager, testified by affidavit:
“ * * * that any short-circuit or failure between the customers main fuses and the transformers would be protected against by the fuses of the power company on the pole with the transformers; that these fuses upon disintegrating ordinarily cause the hinged holder or ‘jack’ to drop down, giving a visual indication from the ground that the circuit is open, but the dropping of the holder or ‘jack’ is not essential to the opening of the circuit, the protection being afforded solely by the disintegration of the fuse; that it would be possible for the holder or ‘jack’ to fail to drop after the ‘blowing’ of the fuse due to corrosion or other cause but this rarely, if ever, occurs.”
Ernest Shahid testified in part:
“Q. In the first count of your complaint you state that there was a dangerous overload of electricity where the defendant’s lines entered your premises. On what do you base that allegation? A. On the basis of the arcing and sparking I saw before I left to call Gulf Power Company up.
“Q. Do you base it on anything else? A. On the shooting coming through that storage room next to room No. 5.
“Q. Do you base it on anything else? A. Not unless it would be on the trouble I had been having with my light bill and the lights dying down and coming up instantly.”
Mr. Dawkins, defendant’s District Engineer, testified that, “ordinarily arcing on the secondary lines will blow the transformer fuses.”
The defendant’s lineman, emergency serviceman, Ratliff testified:
“Q. Is there anything at the pole at the Shoreline Hotel which would cut off the current to the hotel in the event of trouble? A. They have jacks there.
“Q. How do those operate? A. They have a fuse in them and when the fuse blows they drop out.
“Q. What would cause a fuse to blow out? A. Shortage on the low side of the fuse would cause them to blow.
“Q. In other words, if there was a short on the Shoreline Hotel side of the transformers it would blow the fuses ? A. That’s right.
“Q. What would it take in the way of a short to blow a fuse ? Can you tell us what sort of condition would have to exist before the fuses would blow? A. No. I could not. There would be lots of different things that would blow a fuse. Just a shortage inside the switch or anywhere in his place would blow our fuse.
“Q. Would you say that would afford some protection to the Shoreline Hotel, then? A. Yes, on a shortage it would.
“Q. You say on a shortage it would. Is there any other thing that would blow a fuse in the jacks? A. Did you mean other things besides a shortage ?
“Q. Yes, what I mean, are there other things besides a shortage which would cause the jacks to blow? A. Yes, overload or a lot of things can cause the fuse to blow.
“Q. Assume that there happened to be an overload on the line on this night, at what stage would the jacks function in order to cut off the current, on the overload? A. The same as the other.
“Q. Would the fuses blow in time to save the hotel from a dangerous overload of current? A. They are supposed to.
“Q. If there were arcing between the pole, which I understand is lo[426]*426cated right outside the Shoreline Hotel, if there were arcing from the pole to the hotel, would you say there was a condition of overload or shortage involved? A. Well—
“Q. What would cause the arcing? A. I could not tell you what would cause the arcing between the hotel and the pole. It would blow the fuse also.
“Q. It should blow the fuse ? A. Yes, it would blow the fuse that went to it.”
The defendant’s other lineman and emergency serviceman, Barfield, testified:
“Q. Are there any means whereby the current would cut off automatically in the event of trouble? A. On the transformer pole.
“Q. The jacks they referred to? A. Yes.
“Q. What sort of trouble would it take for the jacks to operate? A. An overload.
“Q. Assuming there was a dangerous overload coming into the Shoreline Hotel, would those jacks, if they were functioning properly, cut off the current ? A. Yes, sir.
“Q. Did you make any statement to any one at the scene concerning shooting the transformers with a shotgun or any other kind of gun? A. No, sir.
“Q. You made no such statement? A. No, sir.
“Q. Did you make a statement to any one else concerning the use of a shotgun or some other type of gun? A. No, sir.”
Mr. Shahid had testified :
“A. * * * Mr. Barfield made this statement to this Brent Neilson, 'Two well-placed bullets could have ended all of that.’
“Q. Could have ended all of that?
“A. It could have severed their current from our building.
“Q. How did he happen to make that statement?
“A. Mr. Neilson is noted for his fancy guns, and he saw him there, and he asked him where one of his fancy guns was, and he said ‘Why’ and he told him.”
District Engineer Dawkins testified:
“Q. A statement has been attributed to one Gulf Power Company employee, Barfield, to the effect that he could have shot out the transformers. Is that possible ?
“A. Shot out, what do you mean ?
“Q. Shot them out.
“A. It is possible.”
Ernest Shahid testified that:
“ * * * Mr. Ratliff told me the night of the fire when he came out there after Mr. Barfield left me, he came over when I was on this end, and I was talking to Mr. Ratliff, and he told me he could not understand why those jacks didn’t kick off, and he said something about using some kind of long thing to get those wires on, but he said he could not understand why those jacks didn’t go off. Mr. Ratliff made that statement to me.”
Ernest Shahid further testified:
“A. * * * At a later time I asked Mr. Barfield I wondered why those jacks didn’t work on the hotel, and he said, T truthfully don’t know why those jacks didn’t work, but if your jacks had worked your hotel would never have burned down.’
“Q. Mr. Barfield said that?
“A. Mr. Barfield made that statement to me the morning of the fire.
“Q. When he serviced the pump ?
“A. Yes.”
Appellee argues that the purported declarations by Ratliff and Barfield are not competent evidence. We quote from appellee’s brief:
“Even if these purported declarations might otherwise present an issue, they are not admissible in evidence.
“ ‘Competency of the agent to make admissions on the subject is [427]*427not alone sufficient; the admission which it is sought to use must have been made in connection with the discharge of the agent’s duty, and must be a statement of fact, rather than an expression of opinion.’ 31 C.J.S. [Evidence § 343, p.] 1115
“The sole duty of these two employees was to render emergency repairs. They were not authorized to make statements or express opinions binding on the defendant. The statements do not relate to any repair work done by them but to a supposed condition existing before their arrival and with which they had nothing to do, and which required no work or repairs on their part.”
If the question be considered as involving merely a procedural rule as to the admissibility of evidence, then, under Rule 43(a), Federal Rules of Civil Procedure, the rule, whether federal or state, which favors reception of the evidence governs. New York Life Ins. Co. v. Schlatter, 5 Cir., 1953, 203 F.2d 184, 188; Hambrice v. F. W. Woolworth Co., 5 Cir., 1961, 290 F.2d 557. If, on the other hand, the question turns upon substantive law as to the scope of the agent’s or employee’s authority (see IV Wigmore on Evidence, 3rd ed., Sec. 1078, p. 119), then the state law would control.
In a recent case involving injuries sustained as a result of falling on stairs immediately inside the door at the service department entrance of a Montgomery Ward & Company store, the District Court of Appeals of Florida, Second District, held that a statement of the assistant manager concerning a sign on the door at the time of the accident was admissible, and discussed the Florida law as follows:
“The courts of this country are somewhat in conflict on the question of whether an agent’s statements, which are vicarious admissions against the interests of his principal, are admissible in evidence in an action against the principal by a third party. If such an admission were made by the principal himself, it would be clearly admissible as an exception to the hearsay rule. This question, therefore, turns upon the rules of agency and whether the agent was acting within the scope of his authority.
“We think that in their many conflicting opinions the various courts of this country have developed three different rules. One of these rules allows the evidence if the agent was authorized by the principal to make statements for him concerning the subject matter of the statement. A second rule will allow the agent’s admission if the statement concerned a matter within the scope of his agency and was made before the termination of the agency. A third rule adds to the former two rules the requirement that the statement be a part of the res gestae. It is very obvious that the first rule is far more strict than the second because it requires the agent to have express statement-making authority. The second rule does not require such authority to have been expressly granted but implies it from the agent’s authority or employment with the subject matter of the statement. It is this second rule, in view of the Florida holdings, with which we are concerned.
“In Myrick v. Lloyd, 158 Fla. 47, 27 So.2d 615, 616, we think the Supreme Court of Florida has answered one phase of the defendant’s question. In that case a father was being driven on a business trip by his son, who was also his employee, when the son ran over a boy. After the accident the father directed the son to take the boy’s parents to the hospital. While en route to the hospital the son told the parents of the injured boy that the accident was his own fault and not the fault of their boy. The Supreme Court held that the son was the agent of the father and the statements of admission made to the parents was [428]*428(sic) admissible against the father. The court said, in part, as follows:
“<* * * The best authority, to our mind, is found in Wigmore on Evidence, Vol. IV, Sec. 1078, page 119: “He who sets another person to do an act in his stead as agent is chargeable in substantive law by such acts as are done under that authority; so too, properly enough, admissions made by the agent in the course of exercising that authority have the same testimonial value to discredit the party’s present claim as if stated by the party himself.”
“ ‘We recognize a conflict of authority on this question; however we have chosen the above as the more practical and liberal rule. The purpose here was not to prove agency. That fact had already been established. When this statement was made the status of principal and agent continued. It is a fact that the agent was acting pursuant to express authority and direction of the principal when the statement was made. It is also a fact that the statement had reference to matters occurring within the scope of his employment. When so acting the agent was acting for the principal who might have made such an admission himself against his own interest. It is our conclusion that in this case the statement was admissible *
“The court held in accordance with the second rule stated above, and its opinion is ample authority for admission of the statement with which we are concerned, notwithstanding the fact that the statement in the instant ease was made nine days after the accident.” (Emphasis supplied.) Montgomery Ward & Co. v. Rosenquist, 2 Cir., Fla.App.1959, 112 So.2d 885, 886, 887.
Applying the italicized “second rule,” supra, held applicable in Florida, it is not disputed that if the statements were made at all, they were made before the termination of the agency of either Ratliff or Barfield. Ernest Shahid testified that Ratliff’s statement was made the night of the fire, and Barfield’s the morning of the fire when he serviced the pump. A prima facie case for admissibility has, we think, been made. The scope of the agency of Ratliff and of Bar-field may be more fully developed upon the trial. Summary judgment should be refused until the facts have been sufficiently developed to enable the court to be reasonably certain that it is making a correct determination of the question of the scope of agency of Ratliff and of Barfield. See Palmer v. Chamberlin, 5 Cir., 1951, 191 F.2d 532, 540, 27 A.L.R.2d 416.
The defendant rests heavily on the extensive affidavit of its vice president and operating manager, R. L. Pulley, an expert electrical engineer, and emphasizes the fact that the plaintiffs produced no opinion from an expert and announced that they did not “intend to use an electrical engineer or expert at the trial (other than Wallace Dawkins, an employee of the defendant, to be called as an adverse witness. His deposition taken by plaintiffs is also submitted for consideration in connection with this motion.)” Expert Pulley’s affidavit concluded :
“That based on his years of experience and knowledge in the field and the testimony given in said depositions the affiant finds no evidence whatever indicating a failure on the part of the defendant to provide protection to the plaintiffs nor is there any evidence indicative of the transmitting of current in a quantity or a manner that would have contributed to the destruction of the plaintiffs’ hotel.”
We think that there is applicable here the principle announced by the Supreme Court in Sentilles v. Inter-Caribbean Shipping Corporation, 1959, 361 U.S. 107, 109, 110, 80 S.Ct. 173, 4 L.Ed.2d 142, to the effect that the members of the jury, rather than the expert witnesses, are the ones sworn to make a legal determination of the question of causa[429]*429tion. The plaintiffs are, of course, not. bound by their expressed intention not to use an electrical engineer or expert at the trial.
We conclude as we did in Chapman v. Hawthorne Flying Service, 5 Cir., 1961, 287 F.2d 539, 541:
“Without intimating any conclusions on the merits, and * * * without implying that the plaintiff’s proof as it now stands would warrant submission to a jury, we nevertheless conclude that it is the part of good judicial administration for the facts in this case to be more fully developed before the trial court determines that there is truly no genuine issue as to any material fact. Rule 56, Federal Rules Civil Procedure, 28 U.S.C.A.
“The judgment is reversed for further proceedings not inconsistent with this opinion.”
Reversed and remanded.